Bombay High Court

Shaikh Rahim Shaikh Mohammad And ... vs The State Of Maharashtra And ... on 11 September, 2017

Bench: P.R. Bora

                                  1                   FA NO.2273 OF 2014


     IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                BENCH AT AURANGABAD

                    FIRST APPEAL NO.2273 OF 2014

  1)       Shaikh Rahim S/o. Shaikh Mohammad,
           Age: 65 years, Occu.: Agriculture,
           R/o. Near Qureshi Masjid,
           Chikalthana, Aurangabad.

  2)       Shaikh Nazir S/o. Shaikh Vazir,
           Age: 69 years, Occu.: Agriculture,
           R/o. Ward No.5, Iqbal Chowk,
           Buldhana, Dist. Buldhana.
                                           ...APPELLANTS
                                             (Ori. Claimants)
                VERSUS

  1)       The State of Maharashtra
           Through The District Collector,
           Aurangabad, Dist. Aurangabad.

  2)       The Executive Engineer,
           Public Works Department,
           World Bank Project Division,
           Bandhkam Bhavan, Adalat Road,
           Aurangabad 431 005.
                                          ...RESPONDENTS
                                          (Orig. Respondents)
                                ...
           Mr. More Ashok A., Advocate for appellants;
           Mr. S.P. Sonpawale, AGP for respondents.
                                ...
                           CORAM: P.R. BORA, J.

                                 ***
           Date of reserving the Judgment : 18/07/2017
           Date of pronouncing the Judgment : 11/09/2017
                                 ***




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                                        2               FA NO.2273 OF 2014


  JUDGMENT:

1. The appellants have filed the present appeal

against the judgment and award dated 9th of July, 2014,

passed by the 8th Joint Civil Judge, Senior Division,

Aurangabad, in LAR No.186/2009. The aforesaid

application was filed by the present appellants seeking

enhancement in the amount of compensation as was

awarded to them by the Land Acquisition Officer. The

learned Civil Judge ( hereinafter referred to as the

Reference Court) has enhanced the amount of

compensation and held the appellants entitled for the

compensation at the rate of Rs.10,760/- per square meter

and also for the statutory benefits under the provisions of

the Land Acquisition Act. According to the appellants, the

compensation, as has been enhanced by the learned

Reference Court is also inadequate and they have,

therefore, preferred the present appeal seeking further

enhancement in the amount of compensation as has been

awarded by the Reference Court.

3 FA NO.2273 OF 2014

2. The property which is the subject matter of the

present appeal was a constructed house abutting to the

Aurangabad Jalna Road and was acquired for widening of

Aurangabad Jalna Road and more particularly for Four

Laning of the said Road. The subject property was

acquired vide notification published in the official gazette

under the provisions of Section 126(4) of the Maharashtra

Regional and Town Planning Act, 1966 read with Section 6

of the Land Acquisition Act ( hereinafter referred to as `the

Act of 1894') on 14th of August, 2008. The said

notification was published in the newspapers and was

displayed on the spot on 21st of August, 2008. After

having complied with the necessary formalities, thereafter,

the award under Section 11 of the Act of 1894 was

published on 18th of December, 2008.

3. The Special Land Acquisition Officer determined

the market value of the subject property at the rate of

Rs.3800/- per sq.mt. and, accordingly, offered the

compensation to the appellants who are, hereinafter,

referred to as the claimants. Dissatisfied with the amount

of compensation so offered, the appellants filed an

4 FA NO.2273 OF 2014

application under Section 18 of the Act of 1894 and the

same was adjudicated by the Reference Court. The

claimants had claimed the market value for the acquired

property at the rate of Rs.3,000/- per sq.ft. One of the

claimants, namely, Shaikh Rahim Shaikh Mohammad

testified before the Court to substantiate the claim raised

by the claimants and also filed on record various

documents such as valuation report issued by the Sub

Registrar and the information received under the Right to

Information Act in regard to the MHADA properties offered

for sale. The acquiring body or the State neither adduced

any oral evidence nor filed on record any documentary

evidence. The learned Reference Court, after having

assessed the oral and documentary evidence brought on

record by the claimants, determined the market value of

the acquired property at the rate of Rs.10,760/- per sq.mt.

and, accordingly, enhanced the amount of compensation

payable to the claimants with all statutory benefits under

the provisions of the Act of 1894.

4. As stated hereinabove, since the compensation

so enhanced by the learned Reference Court is inadequate

5 FA NO.2273 OF 2014

according to the claimants, they have preferred the

present appeal seeking further enhancement in the

amount of compensation so determined by the learned

Reference Court.

5. Shri A.A.More, learned Counsel appearing for

the appellants, submitted that the learned Reference Court

has failed in properly appreciating the oral and

documentary evidence brought on record by the claimants

as about the market value prevailing on the date of

acquisition of the subject property. The learned Counsel

submitted that the subject property was admittedly

abutting to the Aurangabad Jalna road i.e. on the main

road and was being used for commercial purpose. The

learned Counsel submitted that sufficient evidence was

produced on record by the claimants to show that a shop

was being run in the subject property and it was,

therefore, the property being used for commercial

purpose. The learned Counsel further submitted that

evidence was also brought on record by the claimants

showing the Ready Reckoner rates prevailing at the

relevant time according to which the market value of the

6 FA NO.2273 OF 2014

subject property was liable to be assessed at the rate of

Rs.19,000/- per sq.mt. The learned Counsel further

submitted that the evidence was also produced bringing on

record that, for MHADA properties put to auction, which

were in interior part, the offers were received upto

Rs.43,000/- per sq.mt. The learned Counsel submitted

that failure on the part of the the learned Reference Court

in properly appreciating the said evidence has resulted in

improper determination of the market value of the

acquired property. Learned Counsel, therefore, prayed

for determination of the market value of the acquired

property on the basis of the evidence brought on record by

the claimants and to enhance the amount of compensation

accordingly.

6. Shri Sonpawale, learned A.G.P., appearing for

the respondent State, supported the impugned judgment

and the award. Learned A.G.P. submitted that the

learned Reference Court has appropriately taken into

account the Ready Reckoner rates as well as the evidence

brought on record by the claimants in respect of the

market value prevailing on the date of acquisition and has

7 FA NO.2273 OF 2014

rightly determined the market value of the acquired

property at the rate of Rs.10,760/- per sq.mt. and, as

such, no interference is required in the impugned

judgment and the award.

7. I have carefully considered the submissions

made by the learned Counsel appearing for the appellants

and the learned A.G.P. appearing for the State. I have

also carefully perused the impugned judgment and the

evidence on record, more particularly, the documentary

evidence. It is not in dispute that the acquired property

was situated abutting to the Aurangabad Jalna Road. It

has also not been disputed by the State that the acquired

property was having commercial potentials. It is further

not in dispute that neither the claimants nor the State has

brought on record any sale instance pertaining to the

property situated on the Highway i.e. Aurangabad Jalna

Road.

8. Perusal of the award passed under Section 11 of

the Act reveals that while determining the market value of

the acquired property, the sale instances which are taken

8 FA NO.2273 OF 2014

into account by the Special Land Acquisition Officer were

pertaining to the properties in the interior part i.e. at some

distance from the main road, either on the southern side

or the northern side but, none was pertaining to the

property situated on the highway i.e. Aurangabad Jalna

Road.

9. The learned Reference Court has determined

the market value of the acquired property on the basis of

the valuation provided by the Sub Registrar and the offset

price fixed by the MHADA while putting to auction their

residential and commercial plots for sale situated at

Mukundwadi, Aurangabad, and the offers received to

MHADA to the said plots. Perusal of the discussion made

by the learned Reference Court reveals that the aforesaid

evidence has not been properly appreciated by it. The

material on record reveals that MHADA had put to auction

total 22 plots from survey nos. 7/1 and 7/2 situate at

Mukundwadi, Aurangabad, for sale out of which 11 were

only for residential purpose and 11 were for residential

cum commercial purpose. For the commercial plots, the

offset price was fixed at Rs.7570/- per sq.mt. whereas, for

9 FA NO.2273 OF 2014

residential plots the offset price was fixed at Rs.5320/- per

sq.mt. The material on record further reveals that the

maximum price which was offered by the prospective

purchasers was in respect of plot No.P-3 and that was

Rs.43,000/- per sq.mt. and the minimum price offered was

Rs.11,401/- for plot No.P-6.

10. In so far as the valuation received from the

Sub Registrar is concerned, it was at the rate of Rs.3800/-

per sq.mt. for the open space; at the rate of Rs.8500/-

per sq.mt. for residential, for the property used as an

office valuation given was at the rate of Rs.11,000/- per

sq.mt.; and for the property in use as a shop, it was at the

rate of Rs.19,000/- per sq.mt.

11. The learned Reference Court, taking as a base,

the aforesaid evidence i.e. the prices offered by the

prospective purchasers to the MHADA plots and the report

of valuation as provided by the Sub Registrar, determined

the market value of the acquired property at the rate of

Rs.10,760/- per sq.mt.

10 FA NO.2273 OF 2014

12. As argued by the learned Counsel for the

appellants, the Reference Court has erred in not

considering the prevailing market rate as provided by the

Sub Registrar for commercial property being used as a

shop and has also erred in relying upon the minimum rate

offered by the prospective purchasers for the sale of

MHADA plots put to sale by way of auction situate at

Mukundwadi instead of taking into account the maximum

rate offered for such plots or at least the average rate

offered for the said plots by the prospective purchasers.

13. It was sought to be canvassed by the learned

Counsel for the claimants that there were two shops in the

acquired property and, as such, while determining the

market value of the said property, the Reference Court

must have determined the same at the rate of Rs.19,000/-

per sq.mt. as per the valuation provided by the Sub

Registrar. My attention was invited by the learned

Counsel to the report received from the Sub Registrar

wherein the existing Ready Reckoner rates are provided.

The argument so made by the learned Counsel, however,

cannot be accepted. I have minutely perused the contents

11 FA NO.2273 OF 2014

of the application which was preferred by the claimants

under Section 18 of the Act of 1894 and also the oral

evidence of claimant no.1 adduced before the Reference

Court. Neither in the application under Section 18 of the

Act nor in the testimony of claimant no.1 before the

Reference Court, any such contention or averment is

noticed that the acquired premises were being used as

commercial premises or that any shop was existing in the

said premises at the time of their acquisition. In the

application under Section 18 of the Act of 1894, it was the

case of the claimants that the respondents demolished the

house and the belongings and the household articles were

crushed because of the arbitrary demolition of the said

property by the respondents. In the testimony before

the Court, in paragraph no.6 of the examination in chief of

claimant no.1, he has deposed that many valuable articles

in their house alike the T.V. set, furniture, one teakwood

cupboard, ornaments were crushed under the bulldozer.

It is nowhere the case of the claimants that their shop was

demolished or that the articles in the shop were destroyed

or crushed under the bulldozer. Further, there is

nothing on record to show that in what name the claimants

12 FA NO.2273 OF 2014

were running the said shop and what articles were being

sold or which services were being provided at the said

shop. In absence of any such evidence, it is difficult to

accept the contention of the claimants that the acquired

property was a shop. In the circumstances, it cannot be

said that the Reference Court committed any gross error

or inherent mistake in not considering the Ready

Reckoner value provided by the Sub Registrar to the tune

of Rs.19,000/- for the premises used as a shops while

determining the market value of the acquired property.

14. In so far as the offers received by the

prospective purchasers for MHADA residential and

commercial plots are concerned, it is observed by the

learned Reference Court that the prices so offered cannot

be considered for deciding the market value of the

acquired property in view of the infrastructure provided by

the MHADA. As has been recorded by the Reference

Court, since MHADA provides all necessary infrastructure

and the MHADA plots are fully developed, the prices

offered for taking the said plots on lease are obviously on

higher side compared with the private properties not

13 FA NO.2273 OF 2014

having such facilities.

15. I have given anxious consideration to the

reasons which are assigned by the Reference Court in not

applying the MHADA rates as well as the Ready Reckoner

rates in determination of the market value of the subject

properties. Ostensibly, though there does not appear

any apparent mistake in the reasons as are assigned by

the Reference Court, on deeper scrutiny of the evidence on

record, it appears to me that some vital aspects are

missed and are not considered by the Reference Court.

As I discussed hereinabove, in absence of any evidence

though the subject property cannot be categorized as a

shop so as to apply the Ready Reckoner rate of

Rs.19,000/-, as has been prescribed by the Sub Registrar,

it would also be unjust to categorize the subject property

purely as a residential premises. I need not to repeat

that even the Reference Court has accepted the fact that

the subject property is having all business potentials.

Having considered the fact that the property was abutting

to the National Highway, no further evidence is required to

draw an inference that the same was more suitable for

14 FA NO.2273 OF 2014

being used as a shop than as a residence. The Ready

Reckoner rate provided of Rs.8500/- by the Sub Registrar

has to be held for purely residential premises not having

any business potential. The subject premises, in no case,

can be listed in the said category. Though in the Ready

Reckoner rates provided by the Sub Registrar, there is no

such category prescribing certain premises to be semi

commercial and semi residential, it appears to me that

while determining the market value of the subject

property, it would be, in all fairness, to consider the

subject property in the category of semi commercial and

semi residential.

16. Secondly, the learned Reference Court has not

discussed as to why it has preferred to consider the offer

of the lowest price received by the prospective purchasers

for the MHADA plots for determining the market value of

the acquired land. The evidence on record shows that for

residential cum commercial plots, put to auction by the

MHADA to be given on lease, had received the offers

ranging in between Rs.11,000/- to Rs.43,000/-.

  Admittedly, none of           these plots are not on the highway




                                           15               FA NO.2273 OF 2014

  but somewhere in the interior portion.                  Even though it is

accepted that MHADA plots may receive some better price

since MHADA provides all infrastructure and the plots are

fully developed, the fact cannot be ignored that the

acquired property was at the National Highway and that

may be the most weighty circumstance leading to an

inference that it may receive much higher price than

offered to the plots at the interior part.

17. After having considered aforesaid two aspects,

there remains no doubt that the claimants have certainly

made out a case for enhancement in the amount of

compensation. If the offers received for MHADA plots are

considered, a reasonable inference can be drawn that the